Jag Jeet Singh vs Anil Kumar & Ors.

S. K. Phaujdar, J.—The matter was heard in presence of the learned counsel for the parties on 2421997. This second appeal was preferred by the defendantappellant who had lost in both the Courts below. The Suit No. 1604 of 1980 was filed by one Babu Lal Gupta, predecessorininterest of the respondents for eviction of the defendantappellant from a tenanted premises. It was the case of the plaintiff that the defendantappellant had been a tenant in the suit property (an open land) according to English calendar month. The rent for every month was payable with the expiry of the last date of the month. The defendant failed to pay the rent and a notice of termination of tenancy claiming arrears of rent and vacant possession of the premises was served on the defendant. But the demands were not paid heed to. Rather, inspite of receipt of the notice, the defendantappellant started raising an unauthorised tin shed in the open land in his tenancy. The plaintiff had sent a written objection to the defendant against such unauthorised construction. The plaintiff asserted that the provisions of U. P. Act No. 13 of 1972 were not applicable to the present suit as the tenancy was in respect of a vacant land.

The defendant contested the suit and filed a written statement. He raised a plea that the tenancy was not in respect a vacant land, rather it was for a building standing thereon. The said building had a tiled roof and the plaintiff and his brother were the owners thereof. The defendant claimed that he had taken the premises for running a dairy and it was a manufacturing and industrial purpose. It was also asserted that prior to induction of defendant as a tenant, another tenant was there in the suit premises, who was also running a dairy business. The defendant requested the landlords to repair the tiled roof but they were not ready to do so, rather they permitted the defendant to make the repairs himself. Only thereafter, the defendant removed the tiles and replaced it by a tin shed and above that a tiled roof was made. The defendant had to incur expenses of Rs. 3,000/. The construction made by the defendant came within the purview of "building and the suit of the plaintiff was covered by Section 29A of the U. P. Act No. 13 of 1972 and was not maintainable in its present frame. It was asserted that the plaintiff had not made the coowner as a party to the proceeding and the suit was bad for nonjoinder of necessary party. The suit, according to the defendant, should have been filed before the Small Causes Court and the ordinary Civil Court had no jurisdiction to take up the matter. The notice was also depicted as illegal as it was not served six months ahead of the proposed date of termination, as required under Section 106 of Transfer of Property Act (in short the TP Act). The trial Court framed several issues touching the jurisdiction, nature of tenancy, absence of parties, applicability of Section 29A of U. P. Act No. 13 of 1972 and the notice under Section 106 of the T P. Act.

The trial Court held that the defendant was a tenant in respect of a vacant land and he rejected the plea of protection under Section 29A of the Act No. 13 of 1972. He also held that the notice was proper and legal. It was found by the trial Court that the suit was not bad for absence of necessary party and the Court had the jurisdiction to take up the suit. The suit was accordingly decreed by the judgment dated 2771982 by the IInd Addl. Munsif, Kanpur. The defendant filed Civil Appeal No. 525 of 1982 wherein again the issues were taken up for a fresh discussion and questions were raised before the first appellate Court that the tenancy was in respect of a building and not for a vacant piece of land and other objections regarding jurisdiction, protection under Section 29A and the validity of the notice were again pressed before the appellate Court. The contentions were rejected.

In the Second Appeal, the learned counsel for the defendantappellant again took up these objections. It was contended that the building over the suit property was existing for the last 25 years and the long user of the same would suggest implied consent of the landlord in the construction of the building. It was stated that the case squarely came within the purview of Section 29A of the Act No. 13 of 1972 and the suit could not have been decreed unless any one of the grounds under Section 20 of this Act was present. Reference was made to the definition of the word ''building'' in the aforesaid Act to say that it would include any roofed structure. As regards the notice, the learned counsel referred to Section 106 of the T. P. Act to say that, admittedly, the premises were taken for running a dairy which was either a manufacturing process or an agriculture process and, in any case, the tenancy would be deemed to be from year to year terminable by a notice of six months. He proposed to rely on municipal assessments to say that a building had been in existence on the suit property. The learned counsel for the respondents, however, submitted that Section 106 makes the presumption of year to year lease for manufacturing or agriculture purposes only in the absence of any contract to the contrary. It was contended that the plaint itself averred that the tenancy was a month to month one and this fact was clearly admitted in the written statement. Learned counsel for the respondents proposed to conclude that this admission would indicate that the parties had agreed to create a month to month tenancy only and on the face of this agreement, no presumption of year to year tenancy would be made irrespective of the purpose of creation of the lease. In the course of his argument learned counsel for the appellant further referred to Section 15 of the Provincial Small Causes Courts Act and Scheduled II to that Act, to say that where it was a suit for eviction of a tenant from a building only the Small Causes Court could have a jurisdiction in the matter. In fact, this is really an extention of the objection taken under Section 29A of the Act No. 13 of 1972 as Section 15 of Provincial Small Causes Courts Act would not apply if the tenancy is for a vacant piece of land. It was further urged that the plaintiff had not examined himself and his son who had come up to depose was not present during the creation of the lease. According to the learned counsel, it was also a circumstances which should have been considered by the Courts below to reject the contention of the plaintiff. Before other points are answered this last mentioned point may be disposed of at this stage itself. There is no law that requires that a party must examine himself. The law only requires that if he proposes to examine himself, he should do so prior to examining other witnesses. Moreover, the importance of examination of the plaintiff and the effect of the examination on the purpose of the lease would be seen, if at all the purpose would tilt the balance in favour of the defendants in any manner. In answer to the submission that the constructions were made with the consent of the ownerlandlord, it was contended by the respondent that this was a question of fact and findings on this point was consistently given against the defendantappellant by the two Courts below and it was not open to be agitated in this second appeal again.

Sri K. L. Grover relied on certain caselaws in support of his contention. He referred to me the judgment in the case of Ram Dulare v. D.P. Jain, as recorded by the Allahabad High Court and reported in 1965 ALJ at page 722. In this case, the Court explained what was the meaning of words accommodation and building as used in U. P. (Temporary) Control of Rent and Eviction Act, 1947. It was held that even structures like thonpri with a thatched roof for shelter was an accommodation under this Act as a poor tenant could afford accommodation upto that standard only and he was not to be deprived of the protection of the provisions of the Act.

The second case on which Sri Grover placed reliance stands reported in 1981 (1) RCC 452 (Anwar Ahmad v. IVthAddl. District Judge, Saharanpur). It was also a matter under the U. P. Act No. 13 of 1972. In relation to Section 3(1) of this Act even a Khokha, Le. a wooden roofed structure, was held to be a building for the purpose of this Act. This was a judgment recorded by Hon''ble N. D. Ojha, J. (as a Judge of the Allahabad High Court, as his lordship then was). This judgment was closely allowed by another judgment reported in the same journal, same Volume, at page 454 (Nirmal Chand v. IInd Addl. District Judge, Etawah). Here also His Lordship had held that a roofed structure with walls was a building for the purpose of this Act. Another case law was quoted before me by Sri Grover on the point of protection under Section 29A of the U. P. Act No. 13 of 1972. It is a judgment reported in 1985 (2) ARC 89 (Smt. Riazi Begum v. Adarsh Kumar John). The Court explained in this case that Section 29A can apply to tenancies where; (i) only the land had been let out to the tenant, (ii) the tenant had raised permanent structures over it, (iii) this was done with the land lord''s consent and (iv) the tenant had incurred expenses in raising such structures. It was observed that when these pre conditions were satisfied, then neither a pending suit for eviction from such land can proceed nor any decree already obtained in such a case can be executed provided other conditions laid down in the subSection (6) of Section 29A were satisfied. On this point, the argument of Sri Grover may be reiterated. He urged that the two conditions for protection under Section

29A were present but were overlooked by the Courts below as, according to him, the tenant had definitely raised a permanent construction incurring expenses after it and that was done with the landlord''s consent. It was contended that the structures, having been there for 25 years, would only suggest implied consent of the landlord in their erection. To elaborate his arguments on the point of consent, the learned counsel placed further reliance on a decision of the Allahabad High Court reported in 1984 (2) ARC 24. The Court in this case took up the question of consent as indicated in Section 14 of the Act and opined that this consent may not in all cases be express. It could be equally good and effective if consent could be inferred by necessary implication.

To explain what was agricultural purpose as meant under Section 106 of the T. P. Act, the learned counsel for the appellant placed reliance on a decision of the Andhra Pradesh High Court reported in AIR 1977 AP 363 (Mohd. Ismail Khan v. Mohd. Mahboob Ali). It was held herein that when the tenant was keeping buffaloes on the leased premises and was carrying on milk business there, he would be deemed to be carrying on dairy farming and the lease would be held to be for agricultural purpose. To counter act the arguments Sri A N. Sinha, the learned counsel for the respondents, also placed certain caselaws before me. Reliance was placed on a decision of the Supreme Court as reported in 1996 (1) JCLR 76 (SC) (Sri Janki Devi Bhagat Trust v. Ram Swaroop Jain). The Supreme Court explained in this case the true requirements of Sections 106 and 107 of the T P. Act. Here was an admitted case of a lease from month to month, still the High Court insisted that looking to the purpose of the lease, which was manufacturing one, there was a necessity of giving notice of 6 months. The Supreme Court repelled this view of the High Court and held that termination notice of 6 months was not required and the notice that was given was valid. The Supreme Court found that a notice of six months would only be necessary, even in the case of a lease for manufacturing purpose, when there is no contract to the contrary. Reliance was further placed on a decision of the Allahabad High Court on this point as reported in 1985 (1) Allahabad Rent Cases at page 182 (Dev Sukh v. 1st Addl. District Judge, Agra). Hon''ble V N. Khare, J. (as his lordship then was) ruled in this case that a lease for manufacturing purpose could also be on month to month basis but evidence should be there to show that tenancy was from month to month. The landlord in his notice as well as in his plaint indicated in the case under reference that the tenancy was monthly. The tenant admitted this fact in his written statement and in view of these materials the High Court found that the decision of the Courts below that the tenancy was monthly was a correct one. On this very point, together with the question of notice, another decision was cited by the respondent as reported in 1982 ALJ at page 1389 (Smt. Ram Muni Devi v. Vth Addl. District Judge, Meerut). There was an averment of the plaintiff in this case that the lease for manufacturing purpose was a monthly tenancy and this fact was not specifically denied by the tenant and rent was also being paid on monthly basis. It was held that there was a contract contrary to the presumption of year to year tenancy and hence the lease was terminable on a month''s notice.

On the question of applicability of Section 29A of the U. P. Act No. 13 of 1972, the respondent referred to a decision of the Lucknow Bench of the High Court, as reported in 1985 (2) ARC at page 43 (Union Tyres Service and others v. Dewan Pradeep Narain Rai Sharma). Here also a vacant land was let out to a tenant. The tenant made a temporary construction on the land let out to him by putting a tin shed. It was held that Section 29A would not be attracted as no structure of a permanent character had been built. A similar view was taken by the Allahabad High Court again in the case of Mahabir Pd. Chhatri v. Madhav Tandon as reported in 1981 ALR 180. The Court explained the meaning of the terms "building and "structures". Here was a lease of an open land and the tenant constructed a Kothari, tin shed and charhi. These structures, according to this decision, did not come within the ambit of definition of the terms building or "structures" under the provisions of Act No. 13 of 1972.

One of the basic requirements for a protection under Section 29A of the U. P. Act No. 13 of 1972 is that the structure or building had been raised with the consent of the landlord. The presence or absence of the consent, whether implied or expressed, is a point of fact. Materials had come on record that the landlord had given written notice expressing his objection against such structures when the same were being raised. The mere fact that the structures, .were raised despite such objections and continued to be there for a long time may not indicate implied consent and this point may not be reopened, in this second appeal as the Courts below have denied the right of protection under S. 29A to the tenant.

As regards the application of Section 15 of the Small Causes Courts Act, it can simply be stated that the lease was admittedly created for a vacant piece of land and clause 15 read with article 4 of Second Schedule to the Provincial Small Causes Courts Act does not make the case one to be heard by the Court of Small Causes. Section 15 could have been brought into play only if there had been a positive finding under Section 29A of the U. P. Act No. 13 of 1972 but that point had been decided on facts by the Courts below and in the last paragraph 6 of the Court had declined further agitation of the point in this second appeal.

The real objection of the appellant that is worth some consideration at this stage is the question of propriety of the notice. As aforesaid, the learned counsel for the appellant laid stress on the provisions of Section 106 of the T. P. Act to say that from the very nature of the purpose of the lease, it must be deemed to be for agricultural purposes and once it is held to be lease for agricultural purposes, it must be held to be a lease from year to year terminable by six month''s notice expiring with the end of a year of tenancy. This argument was refuted by the learned counsel for the respondent to say that this deeming provision to accept agricultural leases from year to year is subject to the opening clause of section, "In the absence of a contract or local law or usage to the contrary." The caselaws on this point have made it clear that this deeming clause to treat a lease for agricultural purposes as one on year to yea/basis, would come only if there would be no contract to the contrary. The plaint makes it clear that there was an allegation that it was a month to month tenancy. This was specifically admitted by the defendant in his written statement which suggests that there was a contract between the parties contrary to the deeming provision permissible under this Section. When this contract of month to month tenancy is not disputed the termination with one month''s notice as but proper. An argument was advanced that the Court below had failed to consider the purpose of the lease. In may view, that should have been a futile exercise as a finding, however strong in favour of the defendant to show that it was an agricultural lease or a lease for manufacturing purpose, would not have affected the period of notice. The purpose of lease was relevant only to that extent and not for any other purpose.

I have already met in my earlier portion of this judgment the point raised by the defendants that an adverse inference should have been drawn for nonexamination of the plaintiff. I had indicated that if the plaintiff had given other cogent evidence, then no law demanded that the plaintiff must examine himself or herself. If at all he or she were to be examined it was to be done prior to the examination of the other witnesses. There was no other binding law to compel examination of any person. Non examination could have been a matter of appreciation of evidence but nothing has been stated as to how the nonexamination had affected the merits of the case in any manner.

Upon the aforesaid discussions, I feel that the appeal cannot be accepted on any of the questions of law raised in the memo of appeal. The appeal accordingly stands dismissed at the admission stage itself.